Precious Metals Déjà Vu For Morgan Stanley?

Jeff Nielson: In the middle of 2007, Morgan Stanley paid out $4.4 million to settle a class-action lawsuit initiated against it by its own clients. Why were Morgan Stanley’s clients suing it? They alleged that Morgan Stanley took money from them for buying precious metals on their behalf, took money from them for “storage” of these precious metals accounts, but only pretended to purchase the bullion.

Morgan Stanley (reading from the standard Wall Street script) denied the allegations, but settled the case “to avoid the cost and distraction of continued litigation.” Before moving on to Morgan’s Stanley’s latest exploits in the precious metals market, this deserves a few comments.

First of all, if Morgan Stanley did only pretend to purchase bullion on behalf of its clients, while charging them for the “bullion” and storage fees on that imaginary bullion, we have a word for such actions: fraud. So if Morgan Stanley was guilty of swindling its own clients in this manner then why wasn’t it required to acknowledge its guilt?

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The answer is simple. Morgan Stanley is based in The Land of Fraud (aka the United States of America). In The Land of Fraud swindling people (whether total strangers or long-term clients) is a way of life – just ask a former Goldman Sachs employee. Thus the Wall Street banksters can commit fraud without ever having to admit fraud.

Indeed, Bloomberg explicitly confirmed that the SEC’s commit-but-never-admit policy has been standard practice for more than four decades, with such settlements then rubber-stamped by the U.S. judiciary. Bloomberg noted this institutionalized corruption when it criticized a (lone) U.S. judge who has had the temerity to challenge the commit-but-never-admit doctrine:

…As part of the agreement, New York-based Citigroup neither admitted nor denied the allegations, a clause which has been standard in such settlements for at least four decades.

But it gets better for the Wall Street fraud factories. Not only can they commit acts of fraud with impunity while never having to admit to them, but the “fine” they receive after being caught in the act is rarely more than 10% of their proceeds of crime – and often much, much less.

A classic example was the travesty of American Justice when Wachovia Bank was caught laundering nearly $400 billion dollars of drug cartel profits. It paid less than $200 million in fines and penalties. This was less than 2% of the bank’s 2009 profits, and less than 0.05% of the drug-money it laundered.

Given the colossal size of the crime, given the hundreds (if not thousands) of people who would have been murdered to produce those profits, given the tens of thousands (if not hundreds of thousands) of people who would have become addicted to the drugs which produced those profits; one would have thought that Wachovia would have faced the maximum possible wrath of the law. After all, this crime occurred in the country which has foisted its hypocritical “War on Drugs” upon the world. Yet what we saw (and what we always see in The Land of Fraud) was something far less than “a slap on the wrist.”

The analogy would be a group of serial-rapists who go around buggering their victims with impunity, because not only do they never have to admit to the act of rape; but the “punishment” for their crimes (no matter how frequent, or how aggravated) is never anything worse than a pat on the bum.

The implication here is clear with a commit-but-never-admit doctrine which goes back at least 40 years: in the United States the word “fraud” is considered redundant. The presumption of the so-called regulators can only be that all of Wall Street’s transactions are fraudulent, and thus classifying any individual Wall Street business deal as a “fraudulent transaction” would be like referring to “wet water” or “cold ice”.

This is confirmed by the quantum of fines for this litany of fraud, which is never called fraud. We have another term for when someone is forced to surrender a tiny portion of their profits from a transaction to an “associate”: a commission. These farcical legal proceedings are nothing for the Wall Street banksters but a (minor) cost of doing business.

In other words, it is yet another absurd fraud to refer to the pennies levied against Wall Street as “fines”. A fine (by definition) penalizes someone for doing something wrong. Obviously if you “fine” someone only 1% or 2% of their ill-gotten gains you are not penalizing them at all – you are encouraging them to rape-and-pillage as a way of life.

Thus we come to the latter half of Morgan Stanley’s Wall Street script for denying wrong-doing: it’s claim that it only agreed to pay its slap on the wrist “ to avoid the cost and distraction of continued litigation.” As we have seen, the cost of litigation (i.e. doing business) is utterly trivial. As for Morgan Stanley’s claim that it would be “distracted by litigation”, this would be like a fish claiming it was getting “distracted” from all that swimming.

If anyone visits Bloomberg News on a daily basis they will find that the plethora of Wall Street fraud has become such a burden on Bloomberg’s reporters that they now only publish individual acts of Wall Street wrong-doing of the most extreme/egregious nature. For all the everyday, nickle-and-dime acts of fraud (i.e. involving mere millions) Bloomberg now produces a daily compendium of Wall Street’s endless litigation. Indeed, on some days Bloomberg needs to publish several of these compendiums – as the individual summaries of banker misdeeds was too extensive to be included in a single article.

Given that no one knows their way around a courtroom like a Wall Street bankster, this also begs the question: why would Morgan Stanley’s (veteran, highly-paid) legal team pay millions in fines for only pretending to buy bullion for its own clients if (as Morgan Stanley argued) there were “no violations of law and no default or failure to perform [emphasis mine]”?

Either it did purchase precious metals (and store them) for its clients – as it contracted to do – or it didn’t; there is no possible middle-ground here. If it did purchase the bullion; then it writes down the serial numbers, takes a few pictures, produces a notarized affidavit or two, and case dismissed.

Since it would only cost Morgan Stanley roughly 1/1,000,000th of what it paid in its fine to completely exonerate itself (and pay no fine), there can be no rational explanation for Morgan Stanley “settling” this litigation if it had done nothing wrong. Indeed, if Morgan Stanley is as adverse to “the distraction of litigation” as it claims to be, then why spend two years in this class-action lawsuit – when it would have taken little more than two days to completely exonerate itself (if it had done nothing wrong). Quite simply, Morgan Stanley’s deeds totally contradict its own words.

However, that was 2007 and this is 2012 – and Morgan Stanley is back in the bullion business, betting that the chumps who still bring their business to these fraud factories have very short memories. This time it has “refined” its approach to selling precious metals to its clients, as described by another commentator, Avery Goodman:

…It is now offering to sell you gold, silver and platinum bars, and to keep them “safe”, but in a scheme in which they refuse to segregate client assets that they falsely label “allocated” ownership.

Customers who take them up on their offer are going to be cheated. They will not be purchasing metal in allocated storage. Instead they will be purchasing an unsecured bond with repayment promised in the form of gold, silver or platinum. They will be investing in money, not to purchase real metal, but, rather, to fund the operations of a fractional banking scheme involving precious metals.

How does Goodman justify those strong remarks?

Under traditional concepts of allocated precious metals storage, the legal relationship between the warehouse facility and the owner is one of bailment. That means that the warehouse must segregate your property so that it is capable of being identified specifically as yours. It must be able to identify every exact coin, bar and/or piece of jewelry [emphasis mine]…

As Goodman himself concludes, the intent of Morgan Stanley is clear:

…Apparently, investors who are looking to buy precious metals , for the first time, are reading enough, beforehand, to know that they are supposed to be demanding that their holdings be placed in allocated storage…

Thus just as in 2005, Morgan Stanley is explicitly promising its clients that it is buying “physical” metal on their behalf, and then storing that metal in individual (allocated/segregated) accounts. However, in 2005 Morgan Stanley was explicitly pretending to be “storing” gold/silver/platinum for them in individual accounts (as alleged by the clients who successfully sued Morgan Stanley in 2007).

In 2012 Morgan Stanley has added a different wrinkle. Instead of pretending to store precious metals on behalf of its clients (as was alleged in 2005), it has simply invented its own definition of “allocated”, where it is not required to actually hold any metal for clients individually – despite what it is advertising to them. Goodman supplies us with Morgan Stanley’s unique, 2012 definition of an “allocated account”:

Allocated ownership means that the physical precious metals (bars and coins) you order from Morgan Stanley Smith Barney’s Precious Metals Trading Desk are purchased and stored on your behalf, but no specific metal bar or coin is specifically identified as belonging to you[emphasis mine]…

Before we slide down the slippery slope of semantics, let’s take a moment to supply a definition of the verb “to allocate”, so that there can be no accusation (on my part) of perverting language:

1.To set apart for a particular purpose; assign or allot

Yet those clients who choose to hand their money to Morgan Stanley for one of its “allocated precious metals accounts” will find (as Morgan Stanley explicitly acknowledges in the fine print) that nothing is being “set apart, assigned, or allotted” to them.

In 2007, Morgan Stanley paid $4.4 million after being accused by its own clients of only pretending to purchase bullion on their behalf, and then charging them “storage fees” on this imaginary bullion – a blatant act of fraud (as alleged). However, in 2012 while Morgan Stanley is once again charging its clients “storage fees” for the bullion they think they are buying for themselves, it is no longer even pretending to store any bullion on their behalf.

Should Morgan Stanley (again) find itself in the familiar position of being a defendant to more litigation from this latest precious metals scheme, one doesn’t have to have a law degree to predict their line of defense. This isn’t “fraud”, but merely a minor issue of “mislabeling”.

Let us never forget this is The Land of Fraud. If the Wall Street fraud factories can knowingly submitblatantly forged documents to U.S. judges in official court proceedings (countless thousands of times), and have this brushed-off as nothing more than “sloppy paperwork”; I like Morgan Stanley’s odds should it once again find itself being sued by its own clients.

Jeff Nielson is from Canada and is a writer/editor for Bullion Bulls Canada www.bullionbullscanada.com. He has a personal background in law and economics. Bullion Bulls Canada provides general macro-economic and political commentary, since the precious metals markets are among the most complex (and misunderstood) in the world.

Bullion Bulls Canada also provides basic coverage of Canadian precious metals mining companies. Canada is the global leader in mining exploration, and Canadian-listed mining companies (on the Toronto Stock Exchange and Venture Exchange) are responsible for the majority of the world’s most-promising discoveries.